Calcutta High Court
Tirupati Vancom Private Limited vs James Glendye & Co. Private Limited & Ors on 8 August, 2025
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Krishna Rao
G.A. (Com) No. 3 of 2025
In
C.S. (Com) No. 70 of 2025
Tirupati Vancom Private Limited
Versus
James Glendye & Co. Private Limited & Ors.
Mr. Krishnaraj Thaker, Sr. Adv.
Ms. Sreenika Thaker
Ms. Sreenita Ghosh Dastidar
Mr. B. Chakraborty
Ms. Sneha Singhania
Ms. Rishita Sarkar
Ms. Shabana Khatun
...for the plaintiff
Mr. Zeeshan Haque
Mr. Paritosh Sinha
Mr. K.K. Pandey
2
Ms. Pooja Sett
Ms. Sonia Nandy
Ms. Mallika Bothra
..... for the defendant no.1
Mr. Ratnanko Banerji, Sr. Adv,
Mr. Rudrajit Sarkar
Mr. Debangshu Dinda
Mr. Jai Kumar Surana
Mr. Dhruv Surana
Mr. Abhimonyu Roy
Ms. Arundhuti Barman Roy
..... for the defendant nos.2 & 3
Hearing Concluded On : 30.07.2025
Judgment On : 08.08.2025
Krishna Rao, J.:
1. The defendant nos. 2 and 3 have filed the present application being
G.A. (Com) No. 3 of 2025 praying for revocation of leave under Section
12A of the Commercial Courts Act, 2015 and for dismissal of the suit.
2. Counsel for the defendant nos. 2 and 3 submits that the plaintiff failed
to provide any ground or reason for dispensation of pre-institution
mediation under Section 12A of the Commercial Courts Act, 2015.
3. Mr. Ratnanko Banerji, Learned Senior Advocate submits that by an
order dated 16th May, 2025, this Court has dispensed with the
requirement of compliance of Section 12A of the Commercial Courts
Act, 2015 without assigning any reason. He submits that on 20th May,
2025, this Court has taken up the application being G.A. (Com) No. 1 of
2025 in C.S. (Com) No. 70 of 2025 for hearing and by consent of the
parties, this Court has appointed one Senior Advocate as Mediator to
resolve the disputes and differences raised in the suit between the
parties. He submits that the plaintiff had agreed for mediation and as
such there was no urgency in the suit.
4. Mr. Banerji submits that the plaintiff has filed the instant suit by the
strength of an arbitration proceeding filed by the defendant nos. 2 and
3 and an award was passed in favour of the defendant nos. 2 and 3.
Thereafter applications under Section 34 of the Arbitration and
Conciliation Act, 1996 were filed but the same were dismissed by the
judgment dated 4th September, 2024. He submits that thereafter an
appeal was preferred under Section 37 of the Arbitration and
Conciliation Act, 1996 and the appeal was also dismissed by an order
dated 5th March, 2025. He submits that the plaintiff had the knowledge
with respect to the award dated 29th June, 2023 but the plaintiff has
filed the suit in the year 2025 after the period of two years from the
award and thus there is no urgency.
5. Mr. Banerji in support of his case relied upon the judgment in the case
of Dhanbad Fuels Private Limited vs. Union of India & Anr.
reported in 2025 SCC OnLine SC 1129 and submits that at the time
of grant of dispensation of the provisions of Section 12A of the
Commercial Courts Act, 2015, the Court has to see the cause of action
and the prayer of urgent relief. He submits that in the present case, the
cause of action alleged to have been arose in the year 2023 and the
plaintiff has filed the present suit in the month of May, 2025 and as
such it cannot be said that the suit filed by the plaintiff contemplate
urgent relief.
6. Mr. Banerji submits that there is no ground for urgency made out in
the plaint, thus the leave granted under Section 12A of the Commercial
Courts, Act, 2015 to dispensation with pre-institution mediation is
liable to be revoked and suit filed by the plaintiff is to be dismissed.
7. Per contra, Mr. Krishnaraj Thaker, Learned Senior Advocate
representing the plaintiff submits that in the month of January, 2012,
the defendant no.3 on behalf of the defendant nos. 2, 5 and 7
approached the Director of the plaintiff and represented that the
defendant no.1 was the lessee of the premises no. 6, Jawaharlal Nehru
Road, Kolkata - 700 013. The defendant no. 2 along with the defendant
nos. 4 and 6 whose directors were the defendant nos. 3, 5 and 7 had
entered into a Share Purchase Agreement dated 24th March, 2011 with
the defendant nos. 8 to 19 to acquire all the shares of and in defendant
no.1. The defendant nos. 3, 5 and 7 made over a copy of the Share
Purchase Agreement dated 24th March, 2011 to the plaintiff and relying
on the representations made by the defendant nos. 3, 5 and 7 on behalf
of the defendant nos. 2, 4 and 6, the plaintiff agreed to purchase 18%
of the total issued, subscribed and paid up equity shares of the
defendant no.1 for consideration of Rs. 14.72 crores.
8. Mr. Thaker submits that on 21st June, 2012, a Memorandum of
Understanding was entered between the defendant no. 2 as transferor
and the plaintiff as transferee and the defendant nos. 4 and 6 being the
confirming party. He submits that in between 17th January, 2012 to
30th May, 2012, the plaintiff paid an aggregate amount of Rs.
4,66,88,582.94 to the defendant no. 2.
9. By referring the said Memorandum, Mr. Thaker submits that as per
Clause 9, if in case due to any reason the Share Purchase Agreement is
cancelled or terminated, the transferee shall be entitled to the refund of
the entire money until then paid by the transferee to the transferor
immediately upon the transferor receiving the same from the present
shareholders and/or the Company, as the case may be.
10. Mr. Thaker submits that though the defendant no. 2 has got an award
in the month of June, 2023 but the same was challenged before the
Court by an application under Section 34 of the Arbitration and
Conciliation Act, 1996 but the same was dismissed. The defendant no.
2 had further preferred an appeal under Section 37 of the Arbitration
and Conciliation Act, 1996 and the said appeal was also dismissed on
5th March, 2025, thus it cannot be said that cause of action for filing of
the case arose in the month of June, 2023.
11. Mr. Thaker submits that the defendant no. 2 along with the defendant
nos. 8 and 9 have filed a suit being C.S. (Com) No. 764 of 2024 wherein
the plaintiff has been made as party being defendant no. 4 wherein the
defendant no. 2 have prayed for declaration declaring that the plaintiffs
are discharged of all liabilities to the defendant nos. 3 and 4 in respect
of amounts of Rs. 69,47,250/- and Rs. 6,57,90,250/- together with
interest thereon upon deposit the same with the Registrar, Original
Side of this Court.
12. Mr. Thaker submits that being aggrieved with the order passed in an
appeal under Section 37 of the Arbitration and Conciliation Act, 1996,
Deepak Bhargava & Ors. had preferred an SLP before the Hon'ble
Supreme Court wherein by an order dated 9th May, 2025, the Hon'ble
Supreme Court has passed an order by permitting the first respondent
to withdraw the principal amount of Rs. 19,92,30,500/- from the
Registrar of this Court and it was further directed the Registrar of this
Court that the remaining amount shall be invested by the High Court
in a fixed deposit with any Nationalized bank with auto renewal facility
till disposal of the appeal.
13. Mr. Thaker submits that the defendant no. 1 has received the amount
and as per Clause 9 of the Memorandum of Understanding, the
defendant no. 1 ought to have pay the amount to the plaintiff but has
not paid, accordingly, on 14th May, 2025, the plaintiff has filed the
present suit with the prayer for urgent relief and for dispensation of
Section 12A of the Commercial Courts Act, 2015.
14. Mr. Thaker submits that the plaintiff in the plaint had categorically
pleaded the urgency stating the fact that by a letter dated 12 May,
2025, the defendant no. 1 has forwarded the order dated 9th May, 2025,
passed by the Hon'ble Supreme Court wherein the Hon'ble Supreme
Court has permitted the defendant no. 2 to withdraw an amount of Rs.
19,92,30,500/- from the amount deposited before this Court. He
further submitted that the defendant no. 1 has also instituted a suit
being C.S. (Com) No. 764 of 2024) and in the said suit, mediation
between the parties, have failed and no purpose would be served for
institution of mediation process. Mr. Thaker in support of his
submission has also relied upon the judgment in the case of
Dhandbad Fuels Private Limited (supra) and the judgment in the
case of Gavrill Private Limited vs. Maira Fabricators Private
Limited reported in 2023 SCC OnLine Cal 2443 and submits that the
expression "contemplated" to express the intention that an interim
relief may be required at the time of filing of the suit or may be required
any time the defendant expresses an intention to do some act to defeat
the decree to be passed.
15. Mr. Thaker further relied upon an unreported judgment passed by this
Court in the case of Mahesh Thakur vs. Om Prakash Bhartia & Ors.
in C.S. (Com) No. 568 of 2024 dated 8th April, 2025 wherein this
Court held that the plaintiff has elaborately explained the cause of
action to file the present suit and thus it cannot be said that the plaint
does not discloses cause of action.
16. The issue involved in the present application whether the leave granted
to the plaintiff by dispensing with the requirement of provisions of
Section 12A of the Commercial Courts, Act, 2015, is liable to be
revoked or not?
17. The plaintiff has filed the suit praying for the following reliefs:
"a) Declaration that the Award dated 29th June,
2023 made in the arbitral reference between the
defendants is not binding on and does not affect
the right, title and interest of the plaintiff in respect
of 18% shares of and in the Defendant no.1;
b) Decree for Rs. 26,92,84,668/- (Rupees Twenty-
Six Crores Ninety-Two lakhs Eighty-four thousand
Six hundred and Sixty-eight only) as stated in
paragraph 32 above against the defendants and
each of them jointly and severally;.
c) Decree for Rs. 25,05,00,000/- (Rupees Twenty-
Five Crore and Five lakhs only) as stated in
paragraph 34 above against the defendants and
each of them jointly and severally;
d) Alternatively, enquiry into damages and decree
for such sum as may be found upon enquiry.
e) Perpetual the injunction restraining defendants
from withdrawing any amount deposited with the
Registrar Original Side of this Hon'ble Court
pursuant to the orders made in AP no. 664 of 2024
without making payment of the plaintiff's claims as
stated in paragraph 32 and 34 above;
f) The amount deposited with the Registrar Original
Side of this Hon'ble Court pursuant to orders made
in AP no. 664 of 2024 be made over to the plaintiff
in pro tanto satisfaction of its claims;
g) Pendente lite interest and interest on judgment at
12% pa till realization
h) Receiver;
i) Injunction;
j) Attachment;
k) Cost;
l) Further or other reliefs."
18. By an order dated 16th May, 2025, this Court passed the following
order granting dispensation to the requirement of compliance of Section
12A of the Commercial Courts, Act, 2015.
"The Court: In view of the urgency pleaded on
behalf of the plaintiff, the plaint is presented and
admitted subject to scrutiny by the Department.
Leave under Order II Rule 2 of the Code and Clause
12 of the Letters Patent, 1865 is granted. The
requirement of compliance under Section 12A of the
Commercial Courts Act, 2015 is also dispensed
with."
19. The defendants have instituted an arbitral proceeding in which the
plaintiff was not the party and Award was passed on 29th June, 2023.
As per Memorandum of Understanding, 18% of the total shares of the
defendant no.1 was to be assigned to the plaintiff for which the plaintiff
had duly paid the full amount to the defendant no.1. The defendants
have failed and refused to transfer 18% shares of the defendant no.1 to
the plaintiff, the plaintiff is entitled to get an amount of Rs.
11,24,78,832.94 being the aggregate amount paid by the plaintiff as
consideration for acquiring such shares.
20. The defendant no.1 claims that it has already deposited a sum of Rs.
26,34,82,664.36 before this Court pursuant to orders passed by this
Court and thereby discharged its liability to repay the plaintiff. The
defendant no.2 is taking steps to withdraw the said amount and has
instituted an Execution Case No. 424 of 2024 for realization of the said
amount.
21. The Learned Sole Arbitrator has passed the following Award dated 29th
June, 2023, against the defendant no.1:
"It is not in dispute that the transaction
between the parties is a commercial transaction.
The claimant has been deprived of the use of the
aforesaid money and the aforesaid amount which
the Claimant paid was lying at the disposal of the
Respondents for its business. Considering all these
facts, the Tribunal grants interest at the rate of 9%
per annum which has to be paid by the
Respondents to the Claimants on the aforesaid
amount of Rs.19,92,30,500/- from the month of
December, 2019, till the date of the Award at a rate
of 9% per annum, which comes to about
Rs.26,34,82,336.25/- in total (i.e.
Rs.19,92,30,500/- as principal and
Rs.6,42,51,836.25/- by way of interest). Such
amount has to be paid to the Claimant by the
Respondents within a periods of 6 weeks from
date. Failing which the Respondents will have to
pay the aforesaid amount of Rs. 26,34,82,336.25/-
, namely the principal and the interest along with
an interest at the rate of 11% on the total amount
from the date of default till the date of actual
payment."
22. The Award was challenged by way of an application under Section 34 of
the Arbitration and Conciliation Act, 1996 and after dismissal of the
said application, an appeal under Section 37 of the said Act was also
preferred but the same was also dismissed. In the meantime the
defendant no.1 has deposited an amount of Rs. 26,34,82,664.36 before
this Court. The parties have preferred an SLP before the Hon'ble
Supreme Court and by an order dated 9th May, 2025, the Hon'ble
Supreme Court allowed the defendant no.2 to withdraw the principal
amount i.e. Rs.19,92,30 500/- from the Registrar of this Court. The
defendant no.1 by a letter dated 12th May, 2025, informed the plaintiff
about the order dated 9th May, 2025.
23. In the case of Dhanbad Fuels (supra), the Hon'ble Supreme Court held
that the test for "urgent interim relief" is if on an examination of the
nature and the subject-matter of the suit and the cause of action, the
prayer of urgent interim relief by the plaintiff could be said to be
contemplable when the matter is seen from the standpoint of the
plaintiff.
24. In the present case, the plaintiff has made out a specific case for
dispensation of provisions of Section 12A of the Commercial Courts Act,
2015, on the pretext that the plaintiff was not the party to the
arbitration proceedings initiated by the defendant nos.1 and 2 wherein
an award was passed on 29th June, 2023. Subsequently, the parties to
the arbitration have filed an application under Section 34 of the
Arbitration and Conciliation Act, 1996, challenging the Arbitration
Award. After the dismissal of the application under Section 34, an
appeal was filed under Section 37 of the said Act. The defendant no.1
has also instituted a suit being C.S. (Com) No. 764 of 2024 for
discharge of his liability to pay any amount to the plaintiff as the
defendant no.1 has deposited the amount with the Registrar of this
Court. Subsequently, only on 12th May, 2025, the plaintiff came to
know that from the communication of the defendant no.1 that as per
the order passed by the Hon'ble Supreme Court dated 9th May, 2025,
the defendant no. 2 has withdrawn an amount of Rs.19,92,30,500/-.
25. This Court finds that as per Clause 9 of the Memorandum of
Understanding dated 21st June, 2012, in case the Share Purchase
Agreement is cancelled or terminated, the transferee shall be entitled to
the refund of entire money until then paid by the transferee to the
transferor immediately upon the transferor receiving the same from the
present shareholders and/or the company, as the case may be.
The defendant no.1 failed and refused to transfer 18% share in the
defendant no.1 to the plaintiff though the plaintiff has paid an amount
of Rs.11,24,78,832.94. As per the award, the defendant no.1 had
received amount and has deposited in this Court and the defendant
no.1 has also filed a suit for declaration.
26. On receipt of the communication dated 12th May, 2025 from the
defendant no.1, the plaintiff immediately filed the present suit. This
Court considered the urgency, cause of action and the prayers made in
the plaint and did not find any reasons to revoke the leave granted for
dispensation of the requirement of provisions of Section 12A of the
Commercial Courts, Act, 2015.
27. G.A. (Com) No. 3 of 2025 is dismissed.
(Krishna Rao, J.)
